TNAG-0614-FCO40-762-Visit-by-delegation-from-Heung-Yee-Kuk-(Rural-Consultive-Cou-1977 — Page 37

- 13.

34.

Ordinance extends the scope of the Crown's power to expropriate

land in the New Territories beyond the undertaking made by the

Crown in the 1898 Convention, then one has reached the point

where the High Court in Hong Kong might declare the Ordinance

to be ultra vires and void.

If one finds that the Crown Lands Resumption

35.

A similar argument was put forward in Jerusalem-Jaffa

District Governor -v- Suleiman (1926) A.C. 321 where the Privy

Council held that the Supreme Court of Palestine had the power

to declare an Ordinance of Palestine to be ultra vires and void

as being repugnant to the terms of the League of Nations Mandate

under which Britain administered Palestine. In that case an

Order in Council authorized the High Commissioner to promulgate

such Ordinances as might be necessary for the peace good order

and government of the country and were not inconsistent with the

The only distinction between the situation in Palestine,

Mandate.

But,

as set out in the Jerusalem case, and the constitutional position

in Hong Kong is that the Order in Council of 20th October 1898

did not specifically say that the laws for the New Territories

should not conflict with the Crown's treaty obligations.

in our view, it would be almost impossible for the Crown to

argue that a law which is clearly repugnant to the provisions.

of a treaty is nevertheless for the peace, order and good

government of the Colony.

6.

Here, the argument on repugnancy can be quite

simply put. The Crown Lands Resumption Ordinance has given

the Crown the widest possible powers of resumption for "public